Treaty Gives Us a Stronger Hand in the Region
Secretary of State Hillary Clinton, center, Defense Secretary Leon Panetta, right, and Joint Chiefs Chairman Gen. Martin E. Dempsey testify on Capitol Hill in May before the Senate Foreign Relations Committee hearing on the Law of the Sea Convention. Photo: AP.
by Nina Hachigian
China’s rise adds to a growing list of reasons to ratify the U.N. Convention on the Law of the Sea. Senate ratification of the treaty, which sets out a legal framework for conduct in the world’s oceans, will put the United States in an even stronger position to preserve our freedom of navigation in the South and East China Seas against any potential Chinese attempts to restrict our access, now and in the future. It will also allow us to be an even more forceful advocate for a rules-based process when it comes to territorial disputes in those waters and will lend Washington more credibility as it pushes China to follow international laws and norms.
Let’s start with that final reason.
Ratification puts the United States in a stronger position as it works to integrate China into the international system
If the United States ratifies the Law of the Sea Convention, we will have more credibility when we argue that China needs to become a “responsible stakeholder”—in the words of former President George W. Bush’s Deputy Secretary of State Robert Zoellick—in the international system.
America has been pressing Beijing to join international frameworks of rules and norms to create a level, predictable playing field for all; to bring China into the work of tackling shared threats across the world; and to ensure that China’s rise supports rather than disrupts the global system that America and our allies created after World War II. These rules and norms support international trade and economic integration across the world and helped enable China’s astronomical economic growth in recent decades.
It’s true the People’s Republic of China has come a long way since its early days when it totally shunned the international community—and vice versa. Today China is deeply engaged in the international system on a number of levels. In international venues such as the United Nations, the International Monetary Fund, and the G-20, the Chinese show up, they are serious, and they often contribute constructively to policy questions.
Yet China still falls far short of its international commitments when it comes to World Trade Organization rules, international intellectual property standards, International Monetary Fund guidelines on its currency, and the U.N. Declaration on Human Rights, to name a few important areas.
The tables are turned on the Law of the Sea: Because of our failure to ratify the convention, the United States stands outside the international system that we champion. China, 161 other nations, and the European Union have all ratified the convention. The United States remains a “nonparty” to the convention, along with a handful of other nations, including some political pariahs such as Syria, North Korea, and Iran.
It is difficult for America to be a credible champion of rules and norms in the international system when we have not signed on to the international law that governs what can happen in the oceans that cover nearly three-fourths of the planet.
Ratification gives us a stronger position as we navigate issues in the South China Sea
More specifically, ratifying the Law of the Sea Convention will lock in the terms that are extremely favorable to America in our disputes with China over freedom of navigation in the South China Sea. We currently have regular disagreements with the Chinese over where America’s military assets can travel in the oceans near China’s shores. The Law of the Sea would address these issues because it explicitly lays out rules and definitions in ways that the United States helped shape when the convention was written.
Let’s take a very brief detour into maritime legal terms: The Law of the Sea Convention provides clear definitions—ones that the United States prefers—of a state’s “territorial waters” and also its jurisdiction in the all-important “exclusive economic zone.”
Under the convention, a coastal state’s “territorial waters” start from its nautical baseline—basically where the ocean hits the shore at low tide—and extends 12 nautical miles out to sea.
The Law of the Sea convention says these territorial waters are part of the sovereign territory of the coastal state. This means coastal states can make laws that apply to activities on these waters and own any resources in the waters and the seabed, including fish and other sea life, oil, natural gas, and metals and minerals. (There is another “contiguous” zone 24 miles out that is relevant to immigration and health laws but not to this article.)
The next zone, extending out to 200 nautical miles from shore, is the nation’s exclusive economic zone. In this zone the coastal state has rights for the purposes of “exploring and exploiting, conserving and managing the natural resources, whether living or non-living.” Other countries have freedoms of “navigation and over-flight,” among others.
Only the coastal state can therefore exploit its exclusive economic zone’s resources. But its domestic laws do not apply in the zone, and the coastal state cannot stop another country’s civilian or military ships from traveling through it.
The United States is not a party to the Law of the Sea Convention, but, ironically, we follow it in every respect because we believe it reflects “customary international law”—the law that has built up over the years based on what states actually do in the ocean. So when it comes to exclusive economic zones, the United States interprets the convention (and customary international law) to mean exactly what it says, which is that foreign ships have freedom of navigation in other countries’ exclusive economic zones.
China has a different—and hard to justify—interpretation of the convention. It asserts that it has jurisdiction over all foreign military activity in its exclusive economic zone. Unfortunately, in debates with China and others, the United States is forced to advance our arguments about these issues from a position of weakness. Our encounters with the Chinese on this subject go something like this:
Chinese official: Your Navy ships have no right to be in our exclusive economic zone without our permission.
American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides that other states have freedom of navigation in exclusive economic zones.
Chinese official: You are not a party to convention, so it doesn’t matter what it says—you have no standing to make that argument.
As you can see, our discussions get sidetracked from the real issues into our inexplicable nonparty status. If America ratified the convention, we’d be in a much stronger position to assert our rights and contest China’s anomalous position—that America needs China’s permission for our military assets to travel in, above, and below China’s (substantial) exclusive economic zone, up to 200 miles from its shores.
The terms of the convention could change at any time
Here is another critical point: The 163 parties to Law of the Sea Convention could choose to change the convention’s terms at any time. After all, the convention as it stands today is not the same as earlier versions. In fact, there is a marked trend now toward coastal states claiming more jurisdiction over their adjacent waters than the current convention recognizes.
Chances are that any new version of the convention called for by Brazil, China, and other emerging coastal powers would push in favor of a more “Chinese” definition of exclusive economic zone transit rights. They might call for a larger zone with more limited rights for noncoastal states.
That would be a disaster for the United States. America, with the most powerful Navy in the world and trade links that span the globe, needs full freedom of navigation in the world’s oceans. If we do not ratify the Law of the Sea, we will have a very hard time stopping that kind of change, and the longer we wait, the weaker our position will be. We should lock in the beneficial rules—the ones that we helped draft—now.
As it is the United States follows customary maritime law. But customary law can also change over time in ways we cannot control. If the world’s other coastal states such as China start claiming that U.S. military assets can’t transit their exclusive economic zones without permission, that practice could enter customary maritime law. Then the United States would have a hard time arguing that it was going to ignore customary maritime law and instead follow the terms of a treaty that it had never ratified.
Ratifying now puts us in a stronger position on other critical issues in the South China Sea
Finally, the United States will have a stronger hand when it comes to the other issues at play in the South China Sea if it ratifies Law of the Sea. The United States has strong interests there in freedom of navigation and the maintenance of peace and stability.
Brunei, Cambodia, China, Indonesia, Malaysia, the Philippines, Singapore, Taiwan, Thailand, and Vietnam all have overlapping and conflicting claims over islands and shoals in the South China Sea—and thus over the substantial maritime rights that go along with them. While those disputes have been in the news lately with the standoff between the Philippines and China over the Scarborough Shoal, there are many similar contests.
Huge food and energy resources are at stake. Fish stocks in the region are horribly depleted and badly managed, but there is soaring demand for fish from growing populations in neighboring countries with rising wealth and more appetite for animal protein. The South China Sea has nearly one-tenth of the world’s fisheries used for human consumption, which is impressive considering its relatively small size. Hostile incidents are on the rise, as fishing boats enter disputed waters more often in search of their quarry, backed (tacitly or not) by their governments.
The stakes go even higher in terms of energy extraction. New technologies are now making it possible to explore and extract oil and natural gas from the deep ocean. And according to a recent report, the South China Sea likely “holds about 15.6 billion barrels of petroleum, of which about 1.6 billion barrels are recoverable.” Some Chinese estimates are higher by a factor of 10. The U.S. Geological Survey estimates that the seabed also holds nearly 300 trillion cubic feet of natural gas. These numbers are speculative, but even if they are partially accurate, they make the South China Sea a significant potential source for energy resources.
China claims as their “historical waters” more than three-fourths of the South China Sea, delineated by the so-called nine–dash line, pictured below.
These claims are generally considered outrageous by everyone except the Chinese, who have kept the justification for them (and the nature of the claims themselves) ambiguous. The Obama administration has done an admirable job of standing with other Southeast Asian countries trying to resist China’s pressure in these territorial disputes. The administration has called for a multilateral process based on the rule of law, rather than the bilateral approach Beijing prefers.
But the U.S. position would be much stronger if the United States could simply say that, “The U.N. Law of the Sea Convention should govern this dispute.” As Secretary of State Hillary Clinton explained in her recent testimony before the Senate Foreign Relations Committee:
I’m sure you have followed the claims countries are making in the South China Sea. Although we do not have territory there, we have vital interests, particularly freedom of navigation. And I can report from the diplomatic trenches that as a party to the convention, we would have greater credibility in invoking the convention’s rules and a greater ability to enforce them.
The Chinese get a lot of mileage in conversations with Southeast Asian nations from the United States not being a party to the convention. (“How can the Americans tell us that Law of Sea Convention applies when they haven’t even ratified it?”) That’s why Secretary Clinton was joined by five Republican predecessors, who penned an op-ed in the Wall Street Journal this past month asking for Senate ratification.
There is also the possibility that China will shift its strategy. Many think, for example, that Beijing will walk away from its nine-dash claim because the Law of the Sea does not recognize most maritime claims based on history. Others suggest that they will somehow argue that the convention doesn’t apply in the South China Sea.
The government of China is divided on this issue, and Beijing could choose to employ any number of other legal strategies. But no matter what, the United States and its partners can carefully and rationally push back on Beijing’s overreaching to the extent it occurs, if they are united in asserting that the Law of the Sea governs conduct in the world’s oceans.
Some senators have voiced concerns about preserving American sovereignty when it comes to the convention. But as has been written before, rigid interpretations of sovereignty are a double-edged sword when it comes to China. These arguments let China assert that its currency, its climate policy, its development policies—all issues that affect us—are sovereign matters on which it should consider no other country’s concerns.
Being in the strongest legal and diplomatic position we can with China is only one reason for America to sign on to Law of the Sea Convention. Also at stake is our ability to make claims on extended continental shelf areas in the Arctic and in other locales, and establish claims to deep-seabed regions that may contain deposits of rare-earth minerals.
Beyond all the good policy reasons, though, when the U.S. Navy, U.S. Coast Guard, the Joint Chiefs of Staff, the U.S. Chamber of Commerce, Lockheed-Martin, the AFL-CIO, the World Wildlife Fund, the Natural Resources Defense Council, Oceana, AT&T, the American Petroleum Institute, ConocoPhillips, the United States Oil and Gas Association, the Boat Owners Association of the United States, the American Sportfishing Association, former Presidents Bill Clinton and George W. Bush, Secretary Clinton, former Secretaries of State Condolezza Rice and Colin Powell, former Alaska Gov. Sarah Palin, and President Barack Obama all agree that America should do something, shouldn’t we just do it?
Nina Hachigian is a Senior Fellow at the Center for American Progress. This piece was originally published at the Center for American Progress.